United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pending before the court is respondent's motion to
dismiss the petition as untimely. ECF No. 12.
Factual and Procedural Background
was convicted of attempted first degree murder on March 29,
2013. ECF No. 1 at 6. He filed a petition for review in the
California Supreme Court which was denied on November 12,
2014. Id. at 7; ECF No. 12 at 3. He did not petition
the United States Supreme Court for certiorari or file any
petitions for collateral review in state court. ECF No. 1 at
7. The instant petition was filed on May 19,
2016. ECF No. 1 at 64.
Motion to Dismiss
moves to dismiss the petition as untimely. ECF No. 12. He
argues that petitioner had until February 10, 2016, to file a
petition in federal court and that petitioner is not entitled
to any statutory tolling because he did not file any state
habeas petitions. Id. Since the federal petition was
not filed until May 19, 2016, it was untimely and is
opposes the motion, largely arguing the merits of his case.
ECF No. 13. However, petitioner also states that he already
set forth the reasons for his untimeliness in his petition
and that the untimeliness should be excused. Id. at
1. In the petition, petitioner clearly asserts that he is
entitled to equitable tolling, though he does not use that
term. ECF No. 1 at 12-13. Specifically, he argues that his
late filing should be excused because counsel told him it
would take approximately eighteen months for his criminal
appeal to be resolved and then failed to notify him when the
California Supreme Court denied his petition for review on
direct appeal. Id. Petitioner states that he did not
discover that his petition for review had been denied until
after the one-year statute of limitations had expired, at
which point he attempted to determine why he had not been
notified of the court's decision and filed the instant
petition. Id. at 2.
reply to the opposition, respondent rested on his motion to
dismiss. ECF No. 14.
Statute of Limitations
Commencement of the Limitations Period
2244(d)(1) of Title 28 of the United States Code contains a
one-year statute of limitations for filing a habeas petition
in federal court. This statute of limitations applies to
habeas petitions filed after April 24, 1996, when the
Antiterrorism and Effective Death Penalty Act (AEDPA) went
into effect. Cassett v. Stewart, 406 F.3d 614, 624
(9th Cir. 2005). The one-year clock commences from one of
several alternative triggering dates. 28 U.S.C. §
2244(d)(1). In this case, the applicable date is that
“on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A).
case the California Supreme Court denied direct review of
petitioner's conviction on November 12, 2014. ECF No. 1
at 7; ECF No. 12 at 3. The record shows petitioner did not
submit a petition for writ of certiorari to the Supreme Court
of the United States. ECF No. 1 at 7. Accordingly, his
conviction became final at the expiration of the ninety-day
period to seek certiorari immediately following the decision
of the state's highest court. Clay v. United
States, 537 U.S. 522, 528 n.3 (2003); Bowen v.
Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The conviction
thus became final on February 10, 2015, and ADEPA's
one-year clock began to run on February 11, 2015.
Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir.
2001) (the day order or judgment becomes final is excluded
and time begins to run the day after the judgment becomes
final (citing Fed.R.Civ.P. 6(a))). Absent tolling, petitioner
had until February 10, 2016, to file a federal habeas corpus
Statutory and Equitable Tolling
limitations period may be statutorily tolled during the time
“a properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending.” 28 U.S.C. §
2244(d)(2). An otherwise untimely habeas corpus petition may
also be found timely if the ...